Faculty scholarship at the best and worst law schools

This article from the Yale Daily News details how Yale’s law library has created a repository for scholarly articles written by faculty members. I found the repository – here – and browsed through, expecting to find the typical kind of law school scholarship: articles about niche, arcane, or irrelevant topics with dubious connections to both the law and scholarship. But I was wrong.

Taking 2010 as an example, the overwhelming majority of articles contained in the repository are clearly related to common-sense, relevant, timely and important legal issues. And this got me thinking: is faculty scholarship at low-ranked schools actually all that bad?

(I do remember, from my days working as a law review editor, that the scholarship submitted for consideration ranged from good to appallingly bad. But that was a long time ago, and it’s time to revisit the issue to see if things have changed.)

I’m going to compare the faculty publications lists from the Yale law school web site (here) with a randomly picked fourth tier school that I know nothing about, Texas Tech, and its list of faculty publications (here).

The first thing to note is that the faculty at Yale are actually writing and publishing on an almost daily basis. In October 2011, Yale faculty were published in The New York Times, Time, Newsweek, Bloomberg, Huffington Post, etc. In that month alone, there were thirteen noteworthy articles or op-eds published by Yale faculty, again the vast majority being on timely, newsworthy and important issues such as the Arab Spring, Occupy Wall Street (and general economic equality issues), and the effects of Big Money on judicial decisions. And you don’t get to be published in the NYT, Time, or Newsweek with junk articles, whether you agree with the substance or not.

Titles published by Yale professors in 2010 include:

How America’s Constitution Affirmed Freedom of Speech Even Before the First Amendment

Using Commitment Contracts to Further Ex Ante Freedoms: The Twin Problems of Substitution and Ego Depletion

Mass Imprisonment, Crime Rates, and the Drug War: A Penological and Humanitarian Disgrace

Regulatory Dualism as a Development Strategy: Corporate Reform in Brazil, the U.S., and the EU

If You Give Shareholders Power, Do They Use It? An Empirical Analysis

Detention, the War on Terror, and the Federal Courts

Leveraging Presidential Power: Separation of Powers without Checks and Balances in Argentina and the Philippines

The Yale list goes on and on. There’s a little fluff in there, but not much. And the faculty are writing and publishing. And teaching, too.

Looking at the entire 2010 list of “selected scholarship” from Texas Tech, only half the faculty bothered to publish anything – 19 out of 39. And titles include important and timely issues such as:

Subjects covered by faculty at Texas Tech are generally of the “fluff” variety – i.e. those with little substance, little relevance, and that add nothing to our understanding or furtherance of the law. To be fair, there are some titles that might pass as legitimate scholarship, such as:

Protecting the Unsophisticated Tenant: A Call for a Cap on Late Fees in the Housing Choice Voucher Program

A History and Analysis of Law Protecting Native American Cultures

The Fourth Amendment: History, Purposes, and Remedies

The difference between Yale scholarship and (serious) Texas Tech scholarship seems to be that Yale professors are at the cutting edge of where the law is right now, and focusing on the main issues. Texas Tech scholars are focused more on looking backwards in time, regurgitating used materials in a different form, focusing on niche issues simply because it’s a niche issue (and thus the author can claim to be the “expert”), and adding little or nothing to any legal debate whatsoever. An article on Fourth Amendment history and purposes, for god’s sake? Aren’t we a little beyond that? How about at least trying to write a timely article about the applicability of the Fourth Amendment to a current-day issue that hasn’t been touched upon yet? How about the Fourth Amendment rights of the Occupy Wall Street protesters in their tent city, and how to balance that with their First Amendment rights?

Could it be, however, that the reason Texas Tech (and other low-tier law school) professors are not performing any legitimate scholarship is because they are spending all their time in the classroom and office, working with students to produce the finest practitioners possible? Of course not. I doubt the teaching load of a Yale professor, especially at the lower end of the faculty seniority list, is any different than that of a Texas Tech professor. Texas Tech professors, and those at other lower-ranked law schools, enjoy very comfortable, low-stress professional lives. They aren’t motivated by a passion for the law: if they were, they’d be producing scholarship like those at the top end of the rankings at Harvard and Yale. My suspicion is that low-ranked law professors aren’t actually that interested in the law at all. They found out, like many law grads, that law isn’t really a fulfilling topic to spend a lifetime thinking about in great depth. Sure, they’re happy enough to trot out the same old torts and contracts lectures every year for a six figure salary, just as most lawyers are happy to plough through the same old real estate transactions and divorce or traffic ticket battles in court, but beyond the familiar basics, they simply don’t care enough about the law to do anything more than the bare minimum required for tenure or a paycheck.

Does this mean they’re bad teachers? Probably not, but there’s certainly a connection between teachers who are passionate about their subject and teachers who produce excellent results in the classroom. We’ve all sat through lectures from bored professors and unmotivated teachers, many of whom are barely one step ahead of the students in their understanding of the material. And we’ve all experienced the same results – perhaps a good grade, but hardly a good education.